State Consumer Disputes Redressal Commission
Smt. Kamlesh Tuli vs 1. M/S Greenfield Sites Management ... on 11 December, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 338 of 2012 Date of Institution : 09.10.2012 Date of Decision : 11/12/2012 Smt. Kamlesh Tuli w/o Shri S.N. Tuli, Resident of House No.482, Sector 32-A, Chandigarh. Appellant/complainant V e r s u s 1. M/s Greenfield Sites Management Private Limited, (A Greenfield Ventures Group Company) SCO No.196-197, 4th Floor, Sector 34-A, Chandigarh-160047 through its Chairman Shri Hardayal Singh Mann 2. Chandigarh Overseas Pvt. Limited, SCO No.196-197, Sector 34-A, Top Floor, Chandigarh, through its Chairman Shri Hardayal Singh Mann 3. Shri Sandeep Bhaskar, Deputy General Manager, Chandigarh Overseas Pvt. Limited, SCO No.196-197, Sector 34-A, Top Floor, Chandigarh. 4. Fashion Technology Park, Sector 90, SAS Nagar, Mohali through its Authorized Authority. ....Respondent/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh.Gagan Aggarwal, Advocate for the appellant.
Sh.Kamaljit Singh Lang, Advocate for respondent no.1.
Sh. Shireesh Gupta, Advocate for respondents no.2 to 4.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 17.09.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it partly accepted the complaint, filed by the complainant (now appellant) and directed the Opposite Parties, as under:-
In view of the above discussion, the present complaint is partly allowed and the opposite parties are directed as under :-
(i) to pay the sum of Rs.7,50,000/- (being the buy back price of the space in question) to the complainant with interest @ 9% per annum from 18.1.2010.
(ii) to pay Rs.10,000/- as costs of litigation.
This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amount of Rs.7,50,000/- shall carry interest @18% per annum from 18.1.2010 till actual payment, besides payment of litigation costs.
As directions have been given for payment of Rs.7,50,000/- being buy back amount from 18.1.2010, the complainant is not entitled to rent after the acceptance of the buy back offer.
2. The facts, in brief, are that the complainant applied for industrial work space/design Studio at Industrial Zone in FASHION TECHNOLOY PARK vide receipt No.583 dated 30.09.2006 measuring 125 square feet, which was acknowledged by the Opposite Parties, vide letter dated 30.09.2006 (Annexure C-3) with confirmation of the Buyback Option. The aforesaid space was allotted to the complainant. A Developer Buyer Agreement dated 16.12.2006 Annexure R-1, was executed between the parties. According to the payment schedule, the complainant made payment of Rs.4.75 lacs, to the Opposite Parties, through cheques, against the total sale consideration of Rs.5 lacs. The possession was promised to be delivered within 30 months, from the date of start of construction. The construction was to start on 19.07.2007. On 26.07.2007, the Opposite Parties intimated the complainant, regarding the delivery of possession in mid 2009, but, thereafter, they (Opposite Parties), postponed the matter, on one pretext or the other. Lastly, the Opposite Parties, showed their inability to handover the possession of the allotted space, to the complainant, on the promised date i.e. 18.01.2010. They showed their willingness to compensate the complainant, for delay, in handing over the possession of the allotted space. Thereafter, the Opposite Parties, vide letter dated 22.06.2009 (Annexure C-11), requested the complainant, to exercise the option of Buyback, within one month prior to 18.1.2010, under intimation or lease out the allotted space @ Rs.30,000/- p.a. Ultimately, the complainant accepted the Buyback option. Thereafter, vide letter dated 12.04.2010, the Opposite Parties, sent a cheque for Rs.15,121/-, to the complainant, as compensation for the period from 19.01.2010 to 31.03.2010 @ Rs.6,250/- per month (Annexure C-13) and informed her that Buyback option would be honoured by 31.12.2010, but, thereafter, they neither paid the compensation for using the said allotted space nor honoured the Buyback Option. A legal notice dated 24.03.2011 (Annexure C-14) was also served upon the Opposite Parties, to redress the grievance of the complainant, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no other alternative, a complaint, under section 12 of the Consumer Protection Act, 1986 (herein after called as Act only), was filed, directing the Opposite Parties, to pay the amount of Rs.7.50 lacs, as agreed between the parties, with regard to the buy-back option scheme, alongwith interest @18% P.A. till realization; pay the lease rent for the period from 01.04.2010 to 31.05.2011 @Rs.6,250/- per month; pay compensation, to the tune of Rs.5 lacs, for mental agony and physical harassment; and pay cost of litigation, to the tune of Rs.33,000/-.
3. The Opposite Parties, in their joint written version pleaded that since the dispute, with regard to the present complaint, as per the agreement, was referable to the Arbitration, the consumer complaint was not maintainable. It was further pleaded that the complainant, did not fall within the definition of a consumer, as she purchased the industrial unit, for the purpose of running commercial activity, on a large scale, for earning huge profits. It was stated that the complainant, had not made the payment towards the said unit, as per the payment schedule. It was admitted that the Developer Buyer Agreement Annexure R-1, was executed between the parties. It was also admitted that Buyback Option, was given by the Opposite Parties, which was accepted by the complainant. It was also admitted that a sum of Rs.4,75,000/-, as sale consideration, against Rs.5 lacs, was paid by the complainant. It was further stated that, on account of the global recession, during the year 2008-2009, the construction could not be started. It was admitted that the Opposite Parties paid Rs.15,121/-, to the complainant, as compensation, for the period from 19.01.2010 to 31.03.2010 @ Rs.6,250/- per month, as per the terms and conditions of the agreement. It was further stated that the construction activity, at the site, where the said unit was located, was in full swing. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties, led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the cases, the District Forum, accepted the complaint partly, in the manner, referred to, in the opening paragraph of the instant order.
6. Feeling aggrieved, against the non-grant of additional compensation for mental agony and physical harassment, and compensation from 01.04.2010 to 31.05.2011, as per Clause 28 of the agreement Annexure R-1, the instant appeal, was filed by the appellant/complainant.
7. We have heard the Counsel for the parties, and, have gone through the evidence and record of the cases, carefully.
8. The Counsel for the appellant/complainant submitted that as per Clause 28 of the Developer Buyer Agreement Annexure R-1, if there was delay in handing over the possession of the unit(s) i.e. beyond 30 months, from the date of start of construction, except for the reasons, beyond the control of the Developer, it (Developer), shall compensate the Buyer(s), by paying him/her Rs.50 per square feet, per month of the super area of the unit(s) as compensation. He further submitted that even compensation @Rs.6,250/- per month, from 19.01.2010 to 31.03.2010, was paid to the appellant/complainant by the Opposite Parties, but, thereafter, they (Opposite Parties), failed to pay the same. Admittedly, the possession was not delivered to the appellant/complainant, within 30 months, from the date of start of construction. The respondents/Opposite Parties gave Buyback Option to the appellant/complainant, which she accepted. Since, possession had not been delivered to the complainant, within 30 months from the date of start of construction, the respondents/ Opposite Parties, were liable to pay compensation @Rs.6,250/- i.e. [Rs.50 per square feet, per month, of the super area], in respect of the unit, to the complainant. This amount was also paid by the respondents/Opposite Parties from 19.01.2010 to 31.03.2010, and, as such, they accepted their liability, to pay this amount, but later on, they failed to pay the same from 01.04.2010 @Rs.6,250/- per month, in respect of the unit, in question. The District Forum, did not record any sound reason for denying this relief to the complainant. In our considered opinion, the Opposite Parties/ respondents, were liable to pay compensation @Rs.6,250/- per month, in respect of the unit, in question, from 01.04.2010 to 31.05.2011, to the complainant, as claimed by her. The complainant is, thus, entitled to the same. The order of the District Forum, needs modification, in this regard.
9. The Counsel for the respondents, however, submitted that once the Buyback option of the unit, was accepted by the complainant, she was not entitled to the compensation, under Clause 28 of the agreement Annexure R-1. It may be stated here, that the Buyback option accepted by the complainant, has not so far been honoured, by the respondents. Had the amount of Buyback option, been paid to the complainant, immediately, after the same was exercised by her, it would have been said that, thereafter, she was not entitled to the compensation, as per Clause 28 of the agreement Annexure R-1. In the letter, written by the Opposite Parties, to the complainant, for exercise of Buyback option, it was no-where stated that after the acceptance of the same, she shall not be entitled to compensation, as per Clause 28 of the agreement Annexure R-1, even if, such commitment was not honoured by them. Since the hard earned money of the complainant, is being utilized by the Opposite Parties, from the date(s) of deposit, and neither the possession of the allotted unit has been handed over to her, nor the Buyback option exercised by her, has so far been honoured, she is certainly entitled to compensation, claimed by her @Rs.50/-
per square feet per month of the super area of the unit, as per Clause 28 of the agreement Annexure R-1. The submission of the Counsel for the respondents/Opposite Parties, in this regard, being devoid of merit, is rejected.
10. The appellant/complainant has also claimed compensation for mental agony and physical harassment. The District Forum, after taking into consideration, the totality of facts and circumstances, as also the evidence, on record, was right in granting interest @9& P.A., on the amount of Rs.7,50,000/-, from 18.01.2010. Even, the District Forum, directed the Opposite Parties, to pay the amount, within a period of 45 days, from the date of receipt of a certified copy of the order, failing which, they were directed to pay the amount of Rs.7,50,000/-, from 18.01.2010, alongwith penal interest @18% p.a. Besides this, the District Forum, also granted Rs.10,000/-, as litigation costs. In our considered opinion, the District Forum, after taking into consideration, the totality of facts and circumstances of the case, and the evidence, on record, was wholly correct, in coming to the conclusion, that since normal interest @9% p.a. and the penal interest @18% p.a., had been granted, there was no necessity of granting compensation for mental agony and physical harassment separately, as it (interest) would take care of the same. It is a settled principle of law, that the Consumer Foras, are not meant to enrich the consumers, at the cost of the service provider. The Consumer Foras, are required to balance the equities, while granting relief. No ground is, therefore, made out, for the grant of additional compensation, for mental agony and physical harassment. Under these circumstances, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
11. No other point, was urged, by the Counsel for the parties.
12. For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The order of the District Forum is modified, in the following manner:-
(i) The Respondents/Opposite Parties, are directed to pay compensation @Rs.6,250/- per month, to the complainant/appellant, in respect of the unit, in question, from 01.04.2010 to 31.05.2011, as claimed in the complaint, within 45 days, from the date of receipt of a certified copy of the order, failing which this amount shall carry interest @12% P.A. from the date of default, till realization.
(ii) The other reliefs granted and directions given by the District Forum, shall remain intact.
13. Certified Copies of this order, be sent to the parties, free of charge.
14. The file be consigned to Record Room, after completion Pronounced.
11.12.2012 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg